Aceh’s flag
: A human rights approach
Harison Citrawan ; A
Researcher at the Human Rights Research and Development Agency, the Law and
Human Rights Ministry
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JAKARTA
POST, 18 April 2013
The ongoing controversy surrounding the Aceh
provincial flag under qanun (bylaw) No. 3/2013 arises from the fact that
it resembles the flag of the now defunct secessionist group the Free Aceh
Movement (GAM).
As well as taking a legal approach to this issue, it can also be
discerned from the application of human rights principles. The
establishment of special autonomy status in Aceh is a form of intrastate
agreement that is derived from the Aceh people’s right to
self-determination. As this right allows people to freely determine their
own political status, the Acehnese have the right to forge their
legitimate claims politically, including the creation of a local flag, as
enshrined under the Helsinki peace accord that Indonesia and the GAM
signed in 2005.
Theoretically speaking, such an intrastate autonomy agreement has several
important advantages, especially when it is contested with the threat of
secession. A. Buchanan (2004) speaks of three advantages.
First, uncoupling the right to secede from legitimate interests that
groups may have in various forms of intrastate autonomy is liberating. It
allows groups to get what they need without the risks involved in
secession.
Second, states will be more receptive to legitimate claims for autonomy
if they are assured that they can respond to these without implicitly
recognizing the group’s right to secede.
Third, the justice-based account of the unilateral right to secede
focuses attention on the need to provide better protection for human
rights.
Human rights have two essential elements: the permission or liberty and a
correlative obligation. On the one hand, self-determination provides
people with the permission or liberty to determine their own political
status and natural resources. On the other, it places a limitation on the
correlative obligations of people exercising their rights. As for the
issue of the Aceh flag, while national laws allow this province to design
its own flag freely, the Acehnese will also weigh up the limits or
correlative obligations that should be respected in exercising the right
to self-determination.
Under Article 1, paragraph 3 of the International Covenant on Civil and
Political Rights, member states shall promote the realization of the
right of self-determination and shall respect that right in conformity
with the provisions of the charter of the United Nations (UN).
At this point, we may pinpoint the nexus between these norms, that the
realization of the right to self-determination has to be within the UN’s
principle objective of maintaining peace and security. As a result of
this, member states have to preserve international peace and security to
promote this right. In brief, the exercise of the right to
self-determination shall not obstruct international peace and security.
Another set of limitations on exercising the right to self-determination
is that it should also be limited by the rights of others. Arguably, in
exercising this right, every person must take into account the other’s
human right and failing to do so could be regarded as an infringement of
human rights. The exercise of self-determination in this context must
regard the national interest as a whole.
Departing from these limitations of self-determination, we turn to the
illegitimate rule of the Aceh flag. First, given the resemblance of the
flag with the GAM’s, the complaint of the central government is
legitimate , as the flag itself could revive old hostilities. The home
minister’s rejection of the qanun is justified under human rights norms,
as the restriction is expressly stipulated by law and is necessary in a
democratic society for the protection of national security and public
order.
Second, the respect of the rights of others, that is to say other
provinces or the nation as a whole, would justify the legality of the
self-determination exercise.
Self-determination is a process rather than an end, “a continuum of rights” that
provides “a plethora of possible
solutions” (Pomerance, 1982).
From a human rights vantage point, the practice of this right in Aceh
through special autonomy status should focus on the legitimate purpose of
achieving justice and prosperity. ●
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